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Guardianship: Do you know the secret?. Overview. What is Guardianship? How is one created? How does one work? Pros and Cons of Guardianship Guardianship Alternatives Tales from the Front. What is Guardianship?.

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Presentation Transcript
  • What is Guardianship?
  • How is one created?
  • How does one work?
  • Pros and Cons of Guardianship
  • Guardianship Alternatives
  • Tales from the Front

what is guardianship
What is Guardianship?
  • Simply put, Guardianship law is a system to protect the rights and liberties of those who cannot protect or care for themselves.
    • Guardianship law is found in Sections 600 – 905 in the Texas Probate Code (TPC) and relevant case law
    • Guardianship is like probate for the living
  • Who needs a Guardianship?
    • Incapacitated
    • Minor
  • Two types of Guardianship
    • Guardianship of the Person
    • Guardianship of the Estate

what is guardianship1
What is Guardianship?
  • What is Incapacity? TPC 601
  • A Minor – a person under 18 who has never been married or had the disabilities of minority removed;
  • An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or
  • A person who must have a guardian appointed to receive funds due the person from any governmental source.

what is guardianship2
What is Guardianship?
  • Guardianship of the Person TPC 767
    • The Guardian of the Person is entitled to the charge and control of the Ward including (1) the right to have physical possession of the Ward and to establish the Ward’s legal domicile; (2) the duty of care, control and protection of the Ward; (3) the duty to provide the Ward with clothing, food, medical care and shelter; and (4) the power to consent to medical, psychiatric and surgical treatment other than the in-patient commitment of the Ward.

what is guardianship3
What is Guardianship?
  • Guardianship of the Estate TPC 768
    • The Guardian of the Estate of the Ward is entitled to the possession and management of all property belonging to the Ward, to collect all debts, rentals or claims that are due to the Ward to enforce all obligations in favor of the Ward.

what is guardianship4
What is Guardianship?
  • The Cast:
  • Aunt Bea – Proposed Ward/ Ward
  • Andy – Applicant/ Proposed Guardian
  • Goober – Attorney Ad Litem
  • Barney – Guardian Ad Litem
  • Opie – Competing Applicant for Guardian
  • Floyd – Guardian of the Estate

how is guardianship created
How is Guardianship Created?

Aunt Bea is having trouble remembering

where she is and who Andy and Opie are.

Her doctor has diagnosed her with

Alzheimer’s Disease. The doctor tells Andy

that things are going to get worse.

Unfortunately, Aunt Bea does not have

a financial or medical power of attorney.

how is a guardianship created
How is a Guardianship Created?

Andy calls his lawyer to see what he should

do. The lawyer asks Andy if Aunt Bea has

executed any powers of attorney. She has not.

The lawyer asks Andy about Aunt Bea’s finances.

She has $100,000 in a savings account, a 4 year

old car worth $10,000 (that she still wants to

drive), a $25,000 CD and she receives $800 a

month in social security benefits. Aunt Bea needs

a Guardian of her person and her estate.

how is a guardianship created1
How is a Guardianship Created?
  • The lawyer gives Andy a Doctor’s Form Letter and tells him to take Aunt Bea back to the doctor and have him complete the form. C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.doc
  • After the doctor completes the form, the lawyer files the form letter and an Application for Guardianship with the Probate Court. Fake Application for Guardianship.doc

how is a guardianship created2
How is a Guardianship Created?
  • Doctor’s Evaluation
  • Application
  • Service of Process
  • Posted Notice
  • Notice to Family and Caregivers Section 633

how is guardianship created1
How is Guardianship Created?
  • Appointment of Attorney Ad Litem
    • Represents the Proposed Ward
  • Appointment of Guardian Ad Litem if necessary
    • Represents the best interests of the Proposed Ward
  • Appointment of Court Investigator
    • Investigates the necessity for Guardianship

how is guardianship created2
How is Guardianship Created?
  • Hearing
  • Testimony of Doctor (or waiver)
  • Testimony of Applicant
  • Report of Attorney Ad Litem
  • Report of Court Investigator
  • Finding of Incapacity
  • Order Creating Guardianship

how does guardianship work
How does Guardianship work?
  • Guardian of the Person
  • Personal Surety Bond
  • Obtain Letters of Guardianship of the Person
  • Make all decisions for powers granted in Order
  • File Annual Report of Condition of Ward

how does guardianship work1
How does Guardianship work?
  • Guardianship of the Estate
  • File corporate surety bond
  • Obtain Letters of Guardianship of the Estate
  • Post Notice to Creditors in newspaper of general circulation
  • File Inventory, Appraisement and List of Claims
  • Manage assets and liabilities of Ward

pros and cons of guardianship
Pros and Cons of Guardianship
  • Pros
    • Protect incapacitated individuals from exploitation or endangerment
    • Help incapacitated individuals manage their lives and assets
  • Cons
    • Expense
    • Possible Family Strife

guardianship alternatives
Guardianship Alternatives
  • Statutory Durable Power of Attorney
  • Medical Power of Attorney
  • Trusts

tales from the front
Tales from the Front